Re Saleh and Minister for Immigration and Border Protection
[2016] AATA 841
•25 October 2016
Saleh and Minister for Immigration and Border Protection [2016] AATA 841 (25 October 2016)
Division: GENERAL DIVISION
File Number: 2016/0331
Re: HASSAN SALEH
APPLICANT
And:MINISTER FOR IMMIGRATION AND BORDER PROTECTION
RESPONDENT
DECISION
Tribunal Deputy President S A Forgie
Date 25 October 2016
Place Melbourne
The Tribunal decides to:
(1)decline the respondent’s request under s 33A of the Administrative Appeals Tribunal Act 1975 that the applicant participate in the hearing by video; and
(2)direct under s 33 of the Administrative Appeals Tribunal Act 1975 that the application be transferred to the Perth Registry of the Administrative Appeals Tribunal where:
(a)the applicant will attend the hearing in person before a member of the Tribunal who is also physically present;
(b)the interpreter will attend the hearing in person;
(c)the applicant’s solicitor will attend the hearing by video link; and
(d)witnesses will attend by video link or telephone as organised by the parties.
………[sgd]…………….
Deputy President
CATCHWORDS
PRACTICE AND PROCEDURE – Video conferencing – request by respondent for applicant to attend via video conferencing technology – circumstances of case required request to be considered in context of deciding appropriate venue for hearing – applicant an unlawful non-citizen detained in immigration detention in Perth Immigration Detention Centre – request declined – substantive application transferred to Perth Registry with direction that applicant attend in person at a hearing conducted by a member located in the Perth Registry
PRACTICE AND PROCEDURE – Transfer of applications – principles relevant to deciding venue – venue transferred from Melbourne Registry to Perth Registry
PRACTICE AND PROCEDURE – Transfer of applications – directive issued by Principal Registry for transfer of applications from Perth Registry where applicant held in the Christmas Island or Yongah Hill Immigration Detention Centres and seeking review of a decision made under s 501 of the Migration Act 1958 – applicant’s situation does not match profile of applications to be transferred from Perth Registry – administrative direction not made under s 18B of the Administrative Appeals Tribunal Act 1975 – administrative direction not made according to law
PRACTICE AND PROCEDURE – Extent of Tribunal’s power – whether Tribunal has power to require the respondent to arrange for the applicant to attend the hearing in Melbourne – Tribunal’s procedure is within discretion of Tribunal – limits on discretionary power – power to require a person to produce another person is in the nature of judicial power – Tribunal has no power to require the respondent to arrange for the applicant to attend hearing
LEGISLATION
Administrative Appeals Tribunal Act 1975 ss 2A, 3(1), 18B, 25(1), 25(6), 30, 32(1)(a), 32(4), 33(1), 33(1AA), 33(1AB), 33(2), 33(2A), 33A, 33A(1), 33A(2), 39(1), 39(2), 40(1)(b), 40A, 42A(2), 42A(7), 59B, 61
Judiciary Act 1903 ss 33(1)(e), 33(1)(f), 39B
Migration Act 1958 ss 5(1), 13, 14, 189, 196, 273, 500, 501, 501(3A), 501(6)(a), 501(7)(a), 501CA
Tribunals Amalgamation Act 2015 s 3 and Schedule 1, Item 4CASES
Alexandra Private GeriatricHospital Pty Ltd v Blewett (1984) 2 FCR 368; 56 ALR 265
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; 141 ALR 618
Lokanc v Secretary, Department of Social Services [2016] FCA 1134
Naisauvou v Minister for Immigration & Multicultural Affairs [1999] FCA 86; (1999) 89 FCR 435; 29 AAR 391
National Mutual Holdings Pty Ltd v Sentry Corporation [1988] FCA 133; (1988) 19 FCR 155; 83 ALR 434
Re Officer in Charge of Cells, ACT Supreme Court; Ex parte Eastman (1994) 123 ALR 476
Re Ward and Secretary, Department of Industry and Commerce (1983) 8 ALD 324
Ruddock v Vadarlis [2001] FCA 1329; (2001) 110 FCR 491; (2001) 183 ALR 1; 66 ALD 25
TCN Channel Nine Pty Ltd v Australian Mutual Provident Society (1982) 42 ALR 496
Wacando v The Commonwealth (1981) 148 CLR 1; 37 ALR 317
York Civil Pty Ltd v BHP Billiton Mitsui Coal Pty Ltd [2014] FCA 1422OTHER MATERIALS
Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
REASONS FOR DECISION
Mr Hassan Saleh held a Class BS Subclass 801 Partner (Residence) visa (Partner visa) entitling him to remain in Australia. On 14 March 2014, Mr Saleh was convicted of a number of offences, fined an aggregate amount of $1,500 and sentenced to a term of imprisonment aggregating 12 months. That sentence meant that he did not pass the character test on the basis that he had a substantial criminal record because of the operation of s 501(6)(a)[1] of the Migration Act 1958 (Migration Act) and was serving a sentence of imprisonment, on a full-time basis in a custodial institution for an offence against the law of, in this case, the State of Victoria. Under s 501(3A), the Minister for Immigration and Border Protection (Minister) was required to cancel Mr Saleh’s Partner visa. In a letter dated 22 April 2015, the Department of Immigration and Border Protection (Department) notified Mr Saleh that the Minister had done so (cancellation decision). The letter advised Mr Saleh that he could make representations to the Minister to revoke the cancellation decision under s 501CA. Mr Saleh took advantage of the invitation but a delegate of the Minister refused his request to revoke the cancellation decision. The delegate’s decision was dated 14 January 2016 and, on 19 January 2016, Mr Saleh applied to the Tribunal for its review.
[1] Migration Act; s 501(7)(c)
Mr Saleh was detained in Melbourne and transferred to the Perth Immigration Detention Centre (Perth IDC). He lodged his application for review at the Perth Registry of the Tribunal. According to an administrative decision made in the Tribunal, to which I will return later in these reasons, Mr Saleh’s application was transferred to the Melbourne Registry without prior reference either to him or the Minister but he remained at the Perth IDC. His application for review is currently listed for hearing on 31 October 2016. Through his solicitor, Mr Gerrard, the Minister has sought an order under s 33A of the Administrative Appeals Tribunal Act 1975 (AAT Act) that Mr Saleh attend the hearing and give evidence via video conferencing technology. On Mr Saleh’s behalf, Ms Ford submitted that order should not be made. Both parties made submissions on an issue that has raised a number of subsidiary issues.
I have decided not to grant the Minister’s application under s 33A but to direct that the matter be heard in the Perth Registry of the Tribunal where Mr Saleh can attend in person with an interpreter in the physical presence of the member constituted to hear the matter. That means that his solicitor, Ms Ford, will attend by video conference as she is based in Melbourne as are three or four of the witnesses. That is not an ideal situation but I have decided that it is an arrangement better designed to ensure that Mr Saleh’s case can be considered in accordance with the objectives in s 2A of the AAT Act and having regard to procedural fairness than having him appear by video link at a hearing held in Melbourne. In reaching that conclusion, I have also taken into account the expenses associated with the Minister’s transferring him to Melbourne for the hearing from immigration detention in Perth. I have set out my reasons for reaching this decision in the following paragraphs and note that a consequence of my decision is that the hearing scheduled for 31 October 2016 in Melbourne will need to be rescheduled for another day in Perth.
BACKGROUND
Immigration detention and related issues
A person becomes an “unlawful non-citizen” when he or she is a non-citizen in the migration zone but not a lawful non-citizen.[2] As a non-citizen must hold a visa in order to be a lawful non-citizen,[3] that meant that Mr Saleh became an unlawful non-citizen as soon as his Partner visa was cancelled and he did not hold another visa. As Mr Saleh was in the “migration zone”[4] at the time he became an unlawful non-citizen, s 189(1) imposed an obligation on an “officer”[5] who knew or reasonably suspected that was the case, to detain him. There is no suggestion that Mr Saleh was not detained lawfully.
[2] Migration Act; ss 5(1) and 14
[3] Migration Act; ss 5(1) and 13
[4] The term is defined in s 5(1) of the Migration Act.
[5] An “officer” is defined by s 5(1) of the Migration Act. Among those meeting that description is are, in summary, an officer of the Department or under the Customs Act 1901, a protective service officer under the Australian Federal Police Act 1979 and a member of the Australian Federal Police and of State and Territory Police Forces. The meaning of “officer” is extended in the circumstances described in s 189(3), (3A) and (4) to include a member of the Australian Defence Force: Migration Act; s 189(5).
As an unlawful non-citizen, s 196 requires him to be kept in detention until one of the four circumstances specified in s 196(1) arises. In Mr Saleh’s circumstances, he must be detained until he is removed from Australia under ss 198 or 199 or he is granted a visa. Section 273 of the Migration Act gives the Minister power, on behalf of the Commonwealth, to cause detention centres to be established and maintained. Nothing in the Migration Act requires the Minister to establish a detention centre in every State or Territory. Nothing requires an unlawful non-citizen to be kept in immigration detention at a detention centre near, or in the State or Territory as his or her residence.
Having regard only to the cross-section of applications made to the Tribunal in earlier years, it seemed to me that, generally, unlawful non-citizens who had lodged applications for review of a decision to refuse or cancel a visa were kept in immigration detention in their home State or Territory. In saying that, I recognise that there was an occasional exception but it was very occasional. Increasingly, the exception is becoming the norm and those unlawful non-citizens who seek to apply, and have applied, to the Tribunal for review of a decision to refuse or cancel their visas, find themselves in a detention centre located far from their families, friends, employment and support systems.
Although there has been no evidence on the issue in this case, I am aware from other cases that it is said that the Minister considers that some detention centres do not have adequate accommodation available to house all who are taken into immigration detention. This is a matter taken into account when selecting precisely where the person will be placed in immigration detention.
These are decisions made by the Minister for he has been given the power and responsibility for them under the Migration Act. They are not made by the Tribunal and it is not within its power to review them. What is within the Tribunal’s power and, indeed, what it is required to do, is to review certain decisions made by the Minister refusing or cancelling a visa. As far as the General Division of the Tribunal is concerned, those decisions are set out in s 500 of the Migration Act.[6] In keeping with s 25(1) of the AAT Act, it sets out the decisions in respect of which an application may be made to the Tribunal. Before the Tribunals Amalgamation Act 2015 (Tribunals Amalgamation Act) came into operation on 1 July 2015, s 25(4) of the AAT Act provided that the Tribunal had power to review any decision in respect of which an application was made to it under any enactment such as the Migration Act. With the repeal of s 25(4) by the TA Act,[7] the Tribunal’s power to do so must now be implied from s 25(1) and the terms of the Migration Act.
[6] Applications made to the Tribunal under other provisions of the Migration Act are heard in its Migration Review Division. For the purposes of the issues in this case, the principles do not differ between the General Division and the Migration Review Decision.
[7] TA Act; s 3 and Schedule 1, Item 40
As permitted by s 25(6) of the AAT Act, the Migration Act modifies the operation of the AAT and does so in relation to certain decisions made under s 501 where the person whose visa is refused or cancelled is in the migration zone. That is not the case here, for the decision under review has been made under s 501CA and is a decision not to revoke a decision to cancel a visa. Even if it were, the modifications made by s 500 to the operation of the AAT Act do not affect the issue I must decide. That is the issue of whether or not Mr Saleh should be required to attend the hearing by video and, implicitly, the location of the hearing.
The administrative direction
On 30 May 2016, an email was sent from the Tribunal’s Principal Registry to the District Registrars and other staff, but not to members, in the General and Other Divisions. [8] That email advised that, in order to manage the workload associated with applications seeking review of decisions made under s 501 of the Migration Act and lodged in Perth by applicants in immigration detention at the Christmas Island Immigration Reception and Processing Centre (Christmas Island) or at Yongah Hill Immigration Detention Centre (Yongah Hill) would, as a general rule, be transferred to the Registry of the Tribunal located in the State in which the applicant had resided before being moved to one or other of those centres. The President was noted to have agreed. Reference was made in the note to this information having been conveyed at the previous District Registrars’ meeting. Appropriate registry processes were to be arranged for the transfer of those applications. No reference was made to the Administrative Appeals Tribunal Act 1975 (AAT Act) or any other enactment as the source of the power or authority under which it was made. In particular, no reference was made to its having been made under s 18B by the President and it appears not to have been so made. I will call this arrangement an “administrative direction” as a convenient description.
[8] The General and Other Divisions is a collective description of all of the Tribunal’s Divisions other than the Migration Review Division and the Social Security and Child Support Division.
Before the email of 30 May 2016 was written, Mr Saleh’s file was transferred by the Perth Registry to the Melbourne Registry. Although the email was dated 13 May 2016 and pre-dated that of 30 May 2016, it too referred to what had been discussed at the District Registrars’ meeting which had been held on 5 May 2016. There is no suggestion in either email that what was discussed at the meeting was later modified. As only the later email sets out the details of what was agreed, I take that to reflect the administrative arrangements that had been decided upon. The email dated 13 May 2016 addressed to the Melbourne Registry by the Perth Registry simply states that the file will be transferred.
When I compare Mr Saleh’s situation against the administrative direction, I note that Mr Saleh’s application does not match the profile of applications to be transferred from the Perth Registry where he had lodged his application on 19 January 2016. He was in the Perth IDC, rather than at Christmas Island or Yongah Hill and so not subject to the administrative direction. Furthermore, the decision of which he sought review was made under s 501CA(4) rather than s 501.
There is no indication in the administrative direction or on Mr Saleh’s file that the applicants whose applications were to be transferred or the Minister were consulted regarding the transfer. In particular, there is no indication on Mr Saleh’s file that there was any consultation with either party. That accords with Mr Gerrard’s instructions that the Minister had not been consulted regarding the transfer. It accords with the absence of any reference to consultation on the file.
For reasons I will come to, I do not consider that the administrative direction has been made according to law. It relates to the management of applications made to the Tribunal. The AAT Act provides specific powers for their management and the Tribunal is required to act within the boundaries of those powers. While it is an administrative body that sits within the executive arm of government, it is no different from any other agency in the executive arm of government or even any court in the judicial arm. It must act within the limits of the power conferred upon it and, as tempting as it is in difficult times of reduced resources, may not act on a basis grounded in administrative expediency without regard to the limits of its power. The reasons underpinning the administrative direction are very understandable. The Perth Registry was receiving a disproportionate number of applications due to its location and due to the Minister’s arrangements regarding immigration detention and the relocation of applicants in centres other than their home States and Territories. It is not a Registry of a size that could cope with that number of applications. The administrative arrangements could have been made lawfully under s 18B of the AAT Act had the administrative staff referred it to the President for him to make the appropriate Direction.
THE SUBMISSIONS
On behalf of the Minister, Mr Gerrard submitted that the Tribunal does not have power to require the Minister to arrange for Mr Saleh to attend at a Tribunal hearing in Melbourne. That is not to say, however, that the Minister would not do so for he is mindful of his obligations under ss 33(1AA) and (1AB) of the AAT Act. Together, those provisions require him to use his best endeavours to assist the Tribunal to make its decision in relation to the proceeding and to assist the Tribunal to fulfil the objectives in s 2A of the AAT Act. A paramount consideration in determining the arrangements that are made to hear the case is the need to ensure that the parties have the opportunity to present their cases. Citing Naisauvou v Minister for Immigration & Multicultural Affairs[9] and Re Ward and Secretary, Department of Industry and Commerce,[10] Mr Gerrard submitted that presentation of a case extends beyond simply giving evidence. The quality of communication by video is not as ideal as face to face communication but it would still enable a fair hearing. If it proves necessary to transport Mr Saleh to Melbourne, he will provide evidence of the costs that will be incurred if a flight can be arranged with a commercial carrier. Given Mr Saleh’s security rating, he would be accompanied by three officers. There is no guarantee that a commercial carrier will accept him as a passenger as enquiries have yet to be made.
[9] [1999] FCA 86; (1999) 89 FCR 435; 29 AAR 391; Moore J
[10] (1983) 8 ALD 324; Deputy President Thompson
On behalf of Mr Saleh, Ms Ford submitted that he should be brought to Melbourne for the hearing of his application. In submitting that, she accepted that the Minister would incur expense but noted that Mr Saleh’s legal representation is being undertaken on a pro bono basis from Melbourne. No legal assistance was available to him in Perth at the time. The expense to the Minister must be weighed against the need for Mr Saleh to have access to his legal representatives in what is a very serious matter. It is not relevant that other applicants have appeared by video link for each case should be considered on its merits and according to its needs.
In this case, Mr Saleh has several mental health issues. If he were to appear by video link, this would compromise the ability of the Tribunal to assess the evidence he gives because it will affect his ability to engage in the hearing. That in turn affects the fairness of the hearing. Mr Saleh will require an interpreter. When I suggested to her that the interpreter should be located in the same room as Mr Saleh, Ms Ford questioned how the interpreter could be prevented from overstepping his or her role as an interpreter and advising Mr Saleh. She also expressed concern about who would provide support to Mr Saleh at the hearing if he were not physically present at the hearing. It would be difficult to assess whether Mr Saleh requires a break or how he is coping with cross-examination.
CONSIDERATION
Until its devolution from a single Registry based in Canberra to a Registry in each of the States, the Tribunal heard either in Canberra or when on circuit to various locations throughout Australia where those applications had been lodged. With devolution of the Tribunal in the mid 1980s, applications continued to be heard in the State or Territory in which they had been lodged. The circuits to the Northern Territory and to regional areas continued as before but were now run from the relevant State or Canberra Registry. On occasion, applications were heard in a location other than the State or Territory in which they were lodged. If that were so, a directions hearing would have first been held by the Tribunal and the views of all of the parties taken into account before the Tribunal made a decision. That decision was not made by Registry staff but by a member constituted to conduct the directions hearing.
Why was that so? It was so because, as vital as the District Registry staff are in the management of the case load in each State and Canberra, the power to deal with the procedural aspects of a proceeding is given to the Tribunal by s 33 and not to them.
Those who may exercise power under s 33(1)
Those who may exercise the power under s 33(1) to give directions are specified in s 33(2):
“For the purposes of subsection (1), directions as to the procedure to be followed at or in connection with the hearing of a proceeding before the Tribunal may be given:
(a)where the hearing of the proceeding has not commenced – by a person holding a directions hearing in relation to the proceeding, by the President, by an authorised member or by an authorised officer; and
(b)where the hearing of the proceeding has commenced – by the member presiding at the hearing or by any other member authorized by the member presiding to give such directions.”
An “authorised officer” is an officer authorised by the President under s 59B of the AAT Act for the purposes of, in this instance, s 33.[11] An “authorised member” has an equivalent meaning.[12] There is nothing on the file that suggests that the decision to transfer the file was made either by an authorised officer, by an authorised member or by the Tribunal. It was transferred in accordance with the administrative direction. Putting aside whether or not the power given by s 33 can be used to make a general direction applying to a number of cases,[13] it could not have been made under that section for it has not been made by a person authorised under s 33(2). The email noted that the President had “agreed” to the proposal but that does not equate with an exercise of his power under s 33.
[11] AAT Act; s 3(1)
[12] AAT Act; ss 3(1) and 59A
[13] See [25] below
The power given by s 33 of the AAT Act
Section 33(1) provides:
“In a proceeding before the Tribunal:
(a)the procedure of the Tribunal is, subject to this Act and the regulations and to any other enactment, within the discretion of the Tribunal;
(b)the proceeding shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and a proper consideration of the matters before the Tribunal permit; and
(c)the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.”
What directions may be given? The discretion appears unfettered but, like any discretionary power conferred by an enactment, it must be exercised not only within the limits expressly stated in the enactment conferring it, but consistently with the subject matter of the enactment and its object as well as with its underlying policy.[14] This is an approach consistent with the modern approach to statutory interpretation as discussed by Brennan CJ, Dawson, Toohey and Gummow JJ in CIC Insurance Ltd v Bankstown Football Club Ltd:[15]
“…. Moreover, the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses ‘context’ in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy …. Instances of general words in a statute being so constrained by their context are numerous. In particular, as McHugh JA pointed out in Isherwood v Butler Pollnow Pty Ltd (1986) 6 NSWLR 363 at 388, if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance. Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent…”[16]
[14] Alexandra Private GeriatricHospital Pty Ltd v Blewett (1984) 2 FCR 368; 56 ALR 265 at 375; 272 per Woodward J
[15] (1997) 187 CLR 384; 141 ALR 618
[16] (1997) 187 CLR 384; 141 ALR 618 at 408; 634-5 (footnotes omitted) per Brennan CJ, Dawson, Toohey and Gummow JJ, and see also Wacando v The Commonwealth (1981) 148 CLR 1; 37 ALR 317 at 25-26; 335-6 per Mason J and TCN Channel Nine Pty Ltd v Australian Mutual Provident Society (1982) 42 ALR 496 at 507-508
I will begin with what might be described as a “pre-condition” to the exercise of the power. It is the obligation found in s 39(1) and relates to the hearing of any proceeding in the Tribunal other than in its Security Division and its Social Security and Child Support Division (SSCSD).[17] The obligation is that:
“Subject to sections 35, 36 and 36B, the Tribunal shall ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents.”
[17] AAT Act; s 39(2)
That is a limitation in the form of a pre-condition of the exercise of the discretionary power under s 33 rather than a limitation on the boundaries of its exercise. There are boundaries, though, and they are inherent in s 33. When regard is had to the AAT Act, it is clear that the power is broad but limited by its having to relate to the procedure to be followed at or in connection with the hearing of a proceeding. The hearing may relate to “proceeding” that is the substantive application for review. Given the breadth of the definition of the word “proceeding” in s 3(1) of the AAT Act, it may relate to the hearing of an application for a stay under s 41 or for a confidentiality order under s 35 and so on. What s 33 does not permit is the exercise of the power generally to, for example, proceedings of a similar type. The power to do that is given to the President by s 18B.[18] These are the first limitations on the power given by s 33(1).
[18] After consultation, s 18B permits the President to give written directions in relation to the operations of the Tribunal, the procedures of the Tribunal, the conduct of reviews by the Tribunal, the arrangement of business by the Tribunal and the places at which the Tribunal may sit.
The outer boundaries of the environment in which the power conferred by s 33(1) is exercised are drawn by s 2A when it provides:
“In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that:
(a) is accessible; and
(b) is fair, just, economical, informal and quick; and
(c) is proportionate to the importance and complexity of the matter; and
(d) promotes public trust and confidence in the decision-making of the Tribunal.”
Therefore, any direction that is made under s 33 regarding the procedure to be followed at or in connection with the hearing of a proceeding must be made bearing in mind that these are essential features of the mechanism of review provided by the Tribunal.
The word “procedure” is not defined in the AAT Act. Its ordinary meanings are:
“… 1 the method and order to be followed in doing something. 2 an established routine for conducting business at a meeting or in a law case. 3 a course of action; a step or measure taken. …”[19]
[19] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
That would seem to be the sense in which the word is used in s 33 and this understanding is supported by s 33(2A). That provision gives an indication of the types of directions that might be made when it provides:
“Without limiting the operation of this section, a directions hearing as to the procedure to be followed at or in connection with the hearing of a proceeding before the Tribunal may:
(a)require any person who is a party to the proceeding to provide further information in relation to the proceeding; or
(b)require the person who made the decision to provide a statement of the grounds on which the application will be resisted at the hearing; or
(c)require any person who is a party to the proceeding to provide a statement of matters or contentions upon which reliance is intended to be placed at the hearing; or
(d)limit the number of witnesses who may be called to give evidence (either generally or on a specified matter); or
(e)require witnesses to give evidence at the same time; or
(f)limit the time for giving evidence or making oral submissions; or
(g)limit the length of written submissions.”
The examples given in s 33(2A) are all consistent with the ordinary meanings of the word “procedure”. That is, they all relate to the method and order to be followed in connection with the hearing of a proceeding. Determination of the location in which a proceeding will be heard is also a matter of procedure. So too, I suggest, is the manner in which a person is permitted or required to participate in a hearing. Since 1 July 2015 when the TA Act came into operation, that has now been the subject of s 33A. That section applies to all of the Tribunal’s Divisions other than the Security Division.[20] Section 33A(1) provides:
“The Tribunal for the purposes of a hearing, or the person conducting a directions hearing or alternative dispute resolution process, may allow or require a person to participate by telephone or by means of other electronic communications equipment.”
[20] AAT Act; s 33A(2)
Inherent in s 33A(1) is the assumption that parties will attend in person. Whether they are permitted to do so is, I suggest, determined by reference to considerations that apply when considering the venue at which a proceeding will be heard. I will come to them but will first consider whether the Tribunal can require the Minister to produce Mr Saleh at a hearing.
Can the Tribunal direct the Minister to bring an applicant to the Tribunal?
As I have said, s 33 is concerned with the procedure to be followed in the hearing of a particular proceeding. Procedure relates to the order to be followed in that hearing. When taken with the Tribunal’s power to hold various proceedings, and the breadth of the power illustrated by the examples given in s 33(2A), it appears that the power extends to directing that a party or witness attend a hearing and to the way in which a party or a witness may attend that hearing. It even extends to directing a party to ask the Tribunal to summons a person as a witness. I do not, however, consider that the power given by s 33 to the Tribunal extends to enabling it to direct one party to produce another party or to produce a witness. That goes beyond what is encompassed in the notion of procedure for it goes beyond the method or order to be followed in the hearing of the proceeding. Procedure is the subject of the power conferred by s 33 and not attendance.
I will begin with the parties themselves. The structure of the AAT Act leads to the conclusion that a party is required to attend a hearing of a proceeding held by the Tribunal if advised of that hearing and not expressly advised that attendance is not required.[21] This is inherent in the power given to the Tribunal by s 40(1)(b) to proceed in the absence of a party who has had reasonable notice of the hearing. It is suggested in s 32(1)(a) when it permits, in a Division of the Tribunal other than the SSCSD, the parties to appear in person or to be represented by another person. Section 32(4) goes further and makes clear that a person who is required to attend may, with the permission of the Tribunal, be represented by another person. Permission is usually given although, in rare instances, the Tribunal may require the personal attendance of a party.[22] It will use its power under s 33 to require that attendance for it relates to the manner in which the proceeding is to be conducted. The summons power given by s 40A is not available to the Tribunal to require the attendance of a party. It is directed to persons other than the parties to appear before the Tribunal and give evidence and produce any document or things specified in the summons.
[21] There may be occasions on which a person who would otherwise be regarded as a party under s 30 of the AAT Act or other relevant enactment is not advised of a hearing. One common example arises when an application has been made to the Tribunal for review of a decision which is not reviewable by it.
[22] These instances may arise, for example, when there are concerns that the representative selected by the party has a conflict of interest with those of that party.
Regardless of whether the parties have been directed to attend, attendance or otherwise is, when all is said and done, a matter for the parties themselves and not for any other person or even for the Tribunal to compel attendance. There are, though, consequences for those who do not attend when given notice of a hearing of a proceeding. It is the formulation of the consequences that reinforces the suggestion that attendance at a proceeding, as distinct from the manner of attendance, is a matter for the parties themselves. I have already mentioned the consequence provided for in s 40(1)(b). It gives the Tribunal power to proceed in the absence of a party who has had reasonable notice of the proceeding. The Tribunal may go further and dismiss an application without proceeding to review if the applicant fails to appear at a directions hearing, alternative dispute resolution or hearing of the proceeding. If the person who fails to appear is a party other than the applicant, the Tribunal may direct that the person who failed to appear shall cease to be a party. These powers are given by s 42A(2) but the Tribunal is not permitted to exercise that power unless satisfied that the person has been given appropriate notice of the proceeding.[23] The Tribunal is not given power to require another person to produce the party at a proceeding.
[23] AAT Act; s 42A(7)
The same is true for witnesses. The Tribunal has power under s 40A to require them to attend by issuing a summons but it cannot enforce its summons. That is not to say that non-compliance does not have consequences. It does for a person who fails to comply with a summons given in accordance with the appropriate regulations or directions commits an offence unless compliance might tend to incriminate him or her.[24] The Tribunal has no power to call upon another person to require the summonsed person to comply with the summons.
[24] AAT Act; s 61
The omission of any power in the AAT Act enabling the Tribunal to require a person, be it another party or a third person, to produce a party at the hearing of a proceeding is consistent with the nature of the power exercised by the Tribunal. As a member of the executive arm of government, it exercises administrative power and not judicial power. Power to require a person to produce another person is in the nature of judicial power conferred upon a court to issue a writ of habeas corpus or a writ of mandamus. It is conferred by s 33(1)(e) and (f) of the Judiciary Act 1903 on the High Court. Section 39B of the Judiciary Act 1903 confers jurisdiction with respect to any matter in which a writ of mandamus, prohibition or injunction is sought on the Federal Court. The power has not been conferred upon the executive and so not upon the Tribunal.
Even if it were, the power to issue a writ of habeas corpus cannot be relied upon to produce a person who is lawfully in immigration detention. That follows from the fact that:
“Habeas corpusis a remedy directed to the relief of a person’s detention without lawful authority, at a particular place and time.”[25]
There is nothing to suggest that Mr Saleh is being held without lawful authority. Furthermore, it cannot be used to achieve a secondary purpose and attendance at a proceeding of the Tribunal would be a secondary purpose.[26]
[25] Ruddock v Vadarlis [2001] FCA 1329; (2001) 110 FCR 491; (2001) 183 ALR 1; 66 ALD 25 at [71]; 510; 21; 42 per Black CJ and see also Beaumont J at [101]-[103]; 517; 28; 49-50; French J dissenting
[26] Re Officer in Charge of Cells, ACT Supreme Court; Ex parte Eastman (1994) 123 ALR 476 at 480 per Deane J
The occasions on which the Tribunal requires the attendance of a person who is held in immigration detention or in custody are not uncommon. There are administrative arrangements in place whereby the Tribunal contacts the relevant authorities and the person is brought to the Tribunal for the hearing. That is so when they are held in a State prison or correctional facility[27] or in immigration detention. Mr Gerrard has very properly indicated that the Minister is prepared to try to make arrangements to bring Mr Saleh to the Tribunal hearing in Melbourne should his application under s 33A be refused.
[27] See, for example, Corrections Act 1986 (Vic); s 6F and the administrative arrangements in the Sentence Management Manual; Interprison and Police/Court Transfers
Relevant considerations in determining venue and attendance
Like the Tribunal, the Federal Court is represented throughout Australia. Section 48 of the Federal Court of Australia Act 1976 permits the Court or a Judge to direct that a proceeding, or part of a proceeding, be conducted or continued at a place specified in that order and subject to any conditions imposed by that Court or Judge. In the case of National Mutual Holdings Pty Ltd v Sentry Corporation[28] (NML), the Full Court of the Federal Court set out matters that guided the exercise of the power given by s 48:
“ The power conferred by s 48 recognises the national character of this Court. The factors which the Court is entitled to take into account in considering whether one city is more appropriate than another for interlocutory hearings or for the trial itself are numerous. The Court must weigh those factors in each case. Residence of parties and of witnesses, expense to parties, the place where the cause of action arose and the convenience of the Court itself are some of the factors that may be relevant in particular circumstances.
The balance of convenience will generally be a relevant consideration, but not necessarily determinative of each case. A party commences a proceeding by filing an application in a particular registry of the Court. If that party or another party wishes to have the proceeding conducted or continued in another place he may apply to the Court for an order under s 48 or O 10, r 1(2)(f) or O 30, r 6 as the case may be. There is no onus of proof in the strict sense to be discharged by the party seeking to conduct or continue the proceedings elsewhere. … The Court must, however, be satisfied, after considering all relevant matters, that there is sound reason to direct that the proceeding be conducted or continued elsewhere. Its starting point is that the proceeding has been commenced at a particular place. Why should it be changed? On the one hand, if the party who commenced the proceeding chose that place capriciously the Court would be justified in giving no weight to the choice of place. At the other end of the scale, a proceeding may have continued for some time at the place of commencement with many steps having been taken there, for example, filing of pleadings and affidavits, discovery and inspection. Due weight would be given by the Court to such matters before directing that the proceeding should continue at a different place.The balance of convenience is important, but its weight must vary from case to case. Ultimately the test is: where can the case be conducted or continued most suitably bearing in mind the interests of all the parties, the ends of justice in the determination of the issues between them, and the most efficient administration of the Court. It cannot and should not, in our opinion, be defined more closely or precisely.”[29][28] [1988] FCA 133; (1988) 19 FCR 155; 83 ALR 434; Bowen CJ, Woodward and Lockhart JJ
[29] [1988] FCA 133; (1988) 19 FCR 155; 83 ALR 434 at 162; 441-442
The concept of the interests of justice was explained by Besanko J in the following passage from his judgment in York Civil Pty Ltd v BHP Billiton Mitsui Coal Pty Ltd[30] (York Civil). Again, the matter concerned the transfer of a matter from one court to another rather than whether a matter should be heard by the same court in one place or another:
“… It is sufficient if the second court is more appropriate. The interests of justice are not the same as the interests of one party, and, in fact, there may be matters relevant to the interests of justice which transcend the interests of both parties.”[31]
[30] [2014] FCA 1422
[31] [2014] FCA 1422 at [24]
Although both NML and York Civil were decided in different contexts from that with which I am concerned, the principles they apply would seem to be equally applicable to proceedings in the Tribunal. As summarised by the Full Court and elaborated upon by Besanko J in York Civil, the principles put forward as the ultimate test is consistent also with the Tribunal’s objective as expressed in s 2A of the AAT Act. That section looks both the mechanism of review that applies in a particular case while having regard to the whole of merits review. Although the interests of justice are wide enough to encompass considerations of procedural fairness, their relevance in reaching a decision on the venue of a hearing and on the manner in which a person should be permitted or required to attend a hearing should not be forgotten.
Where should the hearing be held?
This issue has proved an extremely difficult issue to resolve. The difficulties arise from the decision to relocate Mr Saleh to an immigration detention centre outside of his home State. I realise that this is occurring with increasing frequency and the difficulties caused to the Tribunal in trying to manage the applications for review lodged by persons in that situation are increasing exponentially. One form in which those difficulties manifest themselves in in the disproportionate workload imposed on the Perth Registry. That can be solved at an administrative level by a direction under s 18B but such a direction must necessarily leave room for the consideration of the particular needs of a case. The difficulties are greater when trying to arrange a hearing that will afford procedural fairness to both the applicant and the Minister. For an applicant, the difficulties can take various forms but the most immediate is that he or she is taken away from his or her family, friends and support groups generally. While I realise that the powers relating to immigration detention rest with the Minister under the Migration Act and not with the Tribunal, I ask whether it is possible to formulate a management strategy that takes into account the need to enable applicants to pursue the rights of review that they have been afforded by Parliament under the Migration Act when read with the AAT Act.
I come now to the circumstances of this particular case. As grateful as the Tribunal always is for pro bono assistance, it is not made any easier by the fact that such assistance was not available on this occasion in Perth. Understandably, Ms Ford does not have the funds to travel to Perth for the hearing and I would not expect her to do so. If the matter is heard in Perth, Ms Ford would have to attend the hearing by video link. She would have to endure any difficulties due to any lag in the video relay. She would not have her client at hand.
On the information that I was given at the hearing, Ms Ford expects to call three witnesses, including Mr Saleh’s psychologist, who are resident in Melbourne. One witness resides in Perth where Mr Saleh is based in the Perth IDC. I note from the material on the file that Mr Saleh has self-harmed on a number of occasions with some of them predating the cancellation of his Partner visa. There is also evidence of his suffering from depression syndrome with persistent suicidal ideation. There is evidence in the medical records that would be consistent with Mr Gerrard’s indication that three officers would need to accompany Mr Saleh on any flight that could be arranged.
None of the permutations of hearing arrangements that I have considered recommends itself to me as anything near ideal. If I decline to make an order under s 33A that Mr Saleh participate in the hearing by video, there is no guarantee that travel arrangements can be made with a commercial carrier. Even if they can be, return flights and accommodation arrangements have to be made for him and three officers. The expense is not inconsiderable but, even though I do not have evidence in this case of the costs, I think it safe to say that those expenses are certainly no less if a flight has to be chartered. Expense is one thing. Mr Saleh’s health is another. Given the material that is on the file regarding his mental condition, I do not have any evidence as to the effect that a flight from Perth to Melbourne would have on him in the circumstances in which it is being made.
I accept that it is always far preferable for client and legal adviser to be physically present together but what are the consequences if they are not? Provided he is not under cross-examination, arrangements can be made for Mr Saleh and Ms Ford to speak with each other privately whether he attends the hearing in person or by video. In a case such as this, it is important to be aware of changes in demeanour and behaviour that may indicate that a person is not coping with the situation as he or she should. It may be that the quality of the video connection between Perth and Melbourne has sufficient definition to enable any changes to be monitored but it must be acknowledged that this is not always the case. To overcome that, it would be preferable to have Mr Saleh and the member hearing the case physically in the same room. The video link should be of sufficient quality to enable Ms Ford to have regard to be had to his responses both in their substance and the manner of their delivery.
Ms Ford expressed concern about my suggestion that the interpreter attend at the Perth IDC if Mr Saleh is required to give evidence by video. It is true that there have been instances in which an interpreter has started to advise the witness. Such instances are rare but the Tribunal remains alert to them should they occur. If an interpreter persists in the behaviour after being advised of its inappropriateness, the Tribunal will discontinue an interpreter’s services and arrange to engage the services of another. The Tribunal’s policy is to engage only interpreters accredited at the level of a Professional Interpreter or, as the level was formerly known, Level 3. Its policy minimises the risk of an interpreter’s engaging in inappropriate communication with a witness or with the applicant.
How is the Tribunal to remain alert to the issue in this case? It could be said that it would be just as obvious by video link as it is in the hearing room when the member, witness and interpreter are present together. At the same time, experience shows that it is easier to see when it is happening in the same room in which interpreter and applicant are also present. I mention the fact of the applicant and the interpreter being together in the same room in view of the implied criticism appearing from the judgment of North J in Lokanc v Secretary, Department of Social Services[32] when the Tribunal did not follow that course. Communication between an applicant and an interpreter is vital if that applicant is to be able to make him or herself understood by the Tribunal. Being understood by the Tribunal is a vital feature of its carrying out its task of reviewing an administrative decision on its merits. The person who is best placed to ensure that happens is the Tribunal and the Tribunal is best placed to do so when the applicant and interpreter are physically present.
[32] [2016] FCA 1134
As I have said, this is an extremely difficult decision to make. The expense of Mr Saleh’s being brought to Melbourne is one thing but only one thing in the conundrum of how best to achieve a hearing that is procedurally fair to both parties and a hearing in which Mr Saleh can participate as understood in the case of Naisauvou v Minister for Immigration & Multicultural Affairs and be consistent with the objectives stated in s 2A of the AAT Act. Having regard to all of the matters raised by the parties and considerations of procedural fairness and the interests of justice generally, I have decided that the balance is best achieved if the matter is heard in Perth where Mr Saleh can be brought from the Perth IDC to the Perth Registry of the Tribunal.
Arrangements can be made to have an interpreter physically present in the hearing room. The member constituted to hear the matter will also be physically present in the room where he or she can hear Mr Saleh’s evidence and will be best placed to ensure that the interpreter understands his or her role. He or she will be best placed to observe the nuances and manner in which he gives his evidence in so far as that is relevant to his or her consideration. Mr Saleh’s evidence is the centrepiece of his case and it seems to me that the interests of justice in this case require that he should be physically present with the Tribunal member and the interpreter. Flexible arrangements can be made to ensure that he can give instructions to Ms Ford by means of the video link during the course of the hearing unless he is being cross-examined at the time. These arrangements will leave Ms Ford and three or four witnesses in Melbourne attending the Perth hearing by video or telephone as appropriate. The interests of justice and the attainment of the objectives in s 2A of the AAT Act, however, seem better served by their attending that way than Mr Saleh’s doing so with the hearing held in the Melbourne Registry. They are better served in that way than by his travelling to Melbourne for the purpose of the hearing with its attendant cost. The Minister has made arrangements to have legal representation whether heard in Melbourne or Perth.
For the reasons I have given, I:
(1)decline the Minister’s request under s 33A of the AAT Act that Mr Saleh participate in the hearing by video; and
(2)direct under s 33 of the AAT Act that the application be transferred to the Tribunal’s Perth Registry where:
(a)Mr Saleh will attend the hearing in person before a member of the Tribunal who is also physically present;
(b)the interpreter will attend the hearing in person;
(c)Ms Ford will attend the hearing by video link; and
(d)witnesses will attend by video link or telephone as organised by the parties.
I certify that the forty-nine preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie.
Signed: ………..................[sgd]....................................
Associate
Date of Directions Hearing 21 October 2016
Date of Decision 25 October 2016
Solicitor for the Applicant Ms C Ford and Ms J Mather
Carina Ford Immigration Lawyers
Solicitor for the Respondent Mr A Gerrard
Australian Government Solicitor
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